CHAPTER XIII.

OF THE MEANS PROVIDED FOR THE PERFORMANCE OF THE EXECUTIVE DUTIES.

AMONG the means provided
to enable the president to perform his public duties, the command of the
military force will first be considered.

The principal clauses in the Constitution which affect the subject are
the following: —

The Congress shall have power to raise and support armies, to
provide and maintain a navy, to make rules for the government and
regulation of the army, the navy, and also of the militia, when the latter
are in the service of the United States.

The president shall be commander in chief of the army and navy, and
of the militia of the several states when called into the actual service
of the United States.

These are the modes of action expressly provided for the executive
magistrate, whenever his functions assume a military cast. In relation to
those of a nature merely civil, the Constitution is silent, because
particular description would not be equally practicable, and hence as
before observed, congress is empowered to pass such laws as may be
requisite and proper for carrying into execution the powers vested in the
officers of government.

Subordinate offices are therefore created by congress when necessary,
whose functions are either expressly defined, or implied from the nature
of the office, or left wholly or in part to the direction of the
president.

But the military power is at present to be considered, and this, it
appears, consists of two classes; first, those who are regularly retained
on stipulated compensations to serve in the army or navy, and secondly,
the militia who are called forth as occasion may require, but when in
service are subject to the same regulations as regular troops.

On the nature and character of the first, little needs at present to be
said. The caution that no appropriation of money for the support of an
army for a longer term than two years has been mentioned. The manner of
employment may be directed by congress, or confided to the president.
Congress, which may direct when and where forts shall be built, may also
prescribe that they shall be garrisoned either with specific numbers, or
with such a number as the president may think proper. So in times of
peace, troops may be stationed by congress in particular parts of the
United States, having a view either to their health and easy subsistence,
or to the security of distant and frontier stations; but during the
emergencies of a war, when the defence of the country is cast on the
president, and dangers not foreseen may require measures of defence not
provided for, the president would certainly be justified in preferring the
execution of his constitutional duties, to the literal obedience of a law,
the original object of which was of less vital importance than that
created by subsequent exigencies, and there can be no doubt, that this
necessary power would extend to the erecting of new fortresses, and to the
abandoning of those erected by order of congress, as well as to the
concentration, division or other local employment of the troops, which in
his judgment or that of the officers under his command, became expedient
from circumstances. This would not be a violation of the rules laid down
in the preceding pages, since the obligation of the law is lost in the
succession of causes that prevent its operation, and the Constitution
itself may be considered as thus superseding it.

The power of the president over the militia depends on the same
principle; the necessary supply of the means to enable him to perform his
executive duties.

In a people permitted and accustomed to bear arms, we have the rudiments
of a militia, which properly consists of armed citizens, divided into
military bands, and instructed at least in part in the use of arms for the
purposes of war. Their civil occupations are not relinquished, except
while they are actually in the field, and the inconvenience of withdrawing
them from their accustomed labours, abridges the time required for
military instruction. Militia therefore never amount to perfect soldiers,
unless the public exigencies shall have kept them so long together as to
absorb the civil, in the military character.

The human mind is of a nature so flexible, that it may by perseverance,
be disciplined to results, which at first view would be deemed almost
impossible. The fear of death is certainly one of the earliest, and most
natural passions; yet in a well regulated army, it gives way to the fear
of disgrace; and the soldier becomes more apprehensive of the displeasure
of his commanders, than of the fire of the enemy. Another sort of
mechanism also contributes to actuate a disciplined army; it is the
voluntary and entire surrender of its own judgment to that of the
commander. Obedience would be slow and uncertain, if the soldier was to
allow himself to reflect on the propriety of the orders given: he is
habituated to deem them right, merely because they are orders, and from
the common soldier to the highest subordinate officer, no other rule is
known than that of implicit obedience. The confidence thus reposed is not
of a personal nature; it does not depend merely on the character of the
individual in command. If the commander should fall during an engagement,
it is immediately transferred to his successor, who on his part, at once
assumes the suspended faculty of deciding what is proper to be done, in
lieu of the implicit obedience without inquiry, under which till that
moment he had acted. This at first view appears inconsistent with
individual freedom and independence, and hence it is that militia are
systematically less tractable than regular troops. Devoted patriotism and
personal courage, although they frequently produce feats of exalted men,
are insufficient for the combinations of an army. The conquests of the
Macedonian Alexander may easily be accounted for on this ground; he had
received from his father Philip the first regular army of which we have an
account in history, and with these he fearlessly advanced into distant
countries, and successively defeated immense multitudes of the Persian and
Indian militia, among whom there were doubtless much individual bravery,
and strong desires of defending their country. 1

But notwithstanding their inferiority to soldiers schooled and practised
in the field, gallant actions have been performed by our militia
collectively. The capture of an entire army under General Burgoyne in
1777, and the celebrated defence of New Orleans in 1814, were chiefly
effected by militia.

But however inferior in military estimate to armies regularly trained,
the militia constitutes one of the great bulwarks of the nation, and
nothing which tends to improve and support it should be neglected.

The power given to congress over it is from its nature exclusive, to the
extent that it is carried in the Constitution.

During the late war, a construction of this part of the Constitution was
given in a highly respectable state, which excited no small uneasiness at
the time, and ought not to be passed over in silence. The act of congress
declaring war took place on the 18th of June, 1812, and the president was
expressly authorized by the act to use the whole land and naval forces to
carry it into effect. Orders were soon afterwards issued by him for
calling out certain portions of the militia from each state. The opinions
of the judges of the supreme judicial court of Massachusetts were required
by the governor, and three of them in the absence of the others, declared
their sentiments that the commander in chief of the militia of a state had
a right to decide whether or not the exigencies to warrant the call
existed. Of course, that whatever were the declarations of congress, or
the course pursued by the president, if the governor of a state thought
differently; if he thought there was no war, no insurrection, no invasion,
he was not obliged to obey such requisitions. The governor expressed the
same opinion in a message to the legislature; and a line of conduct was
adopted, greatly tending to impair the energies of the country, and
encourage the hopes of the enemy.

The apprehension professed was, that if congress by determining that
those special cases existed, could at any time call forth the whole of the
militia and subject them to the command of the president, it might produce
a "military consolidation of the states," without any
constitutional remedy. And that under the act of February 28th, 1795, the
militia of the several states would be in fact at his command at any time
when he thought proper, whether the exigency existed or not. 2

But whatever weight might have been found in such objections against
adopting the Constitution, they ceased when it was adopted. It was then
the choice of the people to repose this confidence in congress to enable
them to provide for the common defence and general welfare. If it had been
thought necessary to impose any check or control; if in opposition to the
whole spirit of the instrument, it had been deemed expedient to disunite
the system, by requiring the concurrence of the states, it could
undoubtedly have been so expressed, and in this respect at least we should
not have advanced a step beyond the imbecility of the old government.
Nothing would be more likely to enfeeble the Union than to have subjected
the right of exercising these powers to the governors, or even the
legislatures of the different states, some of which might hold one
opinion, and some insist upon another; and it is by no means clear that
the people did not apprehend a greater danger of abuse of confidence from
the governor and legislature of a state, than from the government of the
United States.

The act of February 28th, 1795, certainly vests in the president alone
the power to call out and employ the militia, without waiting for, or
pointing out any particular mode by which the evidence of the necessity
for it shall be furnished. The former act had required that before the
militia was called out to suppress an insurrection, a certificate should
be given to the president by an associate judge of the supreme court, or
the judge of the district court, that the laws of the United States were
opposed by combinations too powerful to be suppressed by the ordinary
course of judicial proceedings, &c. But besides the incongruity of
thus requiring members of the judicial authority to decide in this manner
upon facts, it was shifting a responsibility from the proper officer, the
president, and throwing it upon those who were less amenable, if amenable
at all, in such a case. The second act, therefore, very properly leaves it
with the president to determine on the exigency which shall authorize the
measure. Power so serious and important, it was believed would not be
lightly or prematurely exercised by him. He who is charged with executing
the laws of the Union, is naturally the best apprized of resistance to
them, and for his own justification he will take care to be prepared with
adequate proof of the fact.

In respect to foreign invasion, its public notoriety, when it actually
takes place, renders no form of evidence necessary, and his power on such
an occasion to call forth the militia, not merely of the state invaded,
but from other parts, to assist in repelling an enemy, who, by the terms
and spirit of our Constitution, is the enemy of the whole, is surely too
salutary to be denied. Of the danger of an invasion before it happens, no
one can be a better judge than he, who, being charged with all our foreign
relations, must be the best informed of the proceedings of foreign powers.
But in the case of war actually declared by law, it is difficult to
conceive even a plausible doubt. The law itself constitutes the fact, and
unless it should be seriously contended that congress was bound, before it
declared war, to obtain the consent of the several states, there can be no
pretence for saying that the commanders in chief of the militia in the
several states were not required or authorized by the Constitution to obey
his military orders.

It fortunately happened that no military operations of a serious
character occurred in that part of the country during the war. If an
invasion in much force had taken place, the probability is, that with a
paternal disregard of these unconstitutional opinions, the president would
have employed the force of the Union to repel it, and the temporary
exhibition of local jealousy, would have been lost in the sense of the
necessity of a common exertion, and the gratitude for the aid which
produced a successful defence.

As it is the only instance in which a construction hostile to the full
exercise of the president's authority has been distinctly avowed, and as
it presents the opportunity of shortly elucidating this part of the
Constitution, the author has felt it a duty to take some notice of it,
though without the smallest intention to revive heats, now happily
extinguished.

The governors of the several states are commanders in chief of their
militia, except when they shall be called into the actual service
of the United States. In fixing the moment when this power over them
ceases, and that of the president commences, the language used in some of
the state constitutions, and in the Constitution of the United States, is
the same. The calling into actual service, and not the actual commencement
of the service, is the period alluded to, and it would in some degree
impair the energetic power, which in times of public danger is to be
exercised by the president, if he possessed no right to enforce obedience
to the call. It may therefore be doubted, whether an act of Congress
postponing the commencement of the president's authority till the militia
shall have obeyed the call, is perfectly consistent with the Constitution.
The legislature can no more abridge, than it can enlarge the executive
powers, under the Constitution. This question was discussed, but not
directly decided in the case of Houston v. Moore. 3

The president during the war had called upon the state of Pennsylvania,
(as well as on other states,) for a portion of the militia. A person who
was draughted for that purpose, disobeyed the summons and was fined by a
court martial held under the authority of an act of assembly of
Pennsylvania.

The main question was, whether the court martial ought to have been
convened under the authority of the United States, or of the state. The
acts of congress of 28th February, 1776, and of the 10th April, 1814, were
much considered. It was held that congress not having legislated on the
subject of holding courts martial in such cases, an act of the state
legislature to that effect was constitutional. The 10th section of the
latter provides for the expense of marching the militia to the place of
rendezvous. Immediately on arriving there, they are undoubtedly in actual
service, and if in their way to it they are under any military command
whatever, it must be that of the president.

Circumstances may render it necessary for the president to appoint
another place of rendezvous, before that previously appointed has been
reached, and military operations may, from a change of the enemy's
position, become necessary even on the march; surely in any such case, the
military power of the president alone ought to be exercised over them.
Considerations of economy in respect to their pay ought in such cases to
be disregarded.

A case which in 1818 was decided in the supreme court of Pennsylvania,
supports most of these principles, and is not at variance with any of
them. That highly respectable court adopted the following construction of
the Constitution and the powers of congress under it.

The president has a right to issue his orders for calling out the
militia, not through the medium of the governor only, but directly to
any officer he thinks proper.

If he makes a requisition on the governor in the first instance, and
the latter declines to comply with it, the president may issue his command
to any officer of the militia.

The governor is not justified in disobeying the requisition, because
he differs in opinion as to the necessity of calling forth the
militia.

The governor without the authority of congress, or of the state
legislature, has no right to direct courts martial affecting those who
disobey the call of the president.

A person enrolled, draughted, and regularly notified when and where
to attend for muster and inspection, is liable to a penalty on the
judgment of a court martial constituted under the authority of the
United States — although such person, before he appears at the
place of rendezvous, may not be justly considered as in actual
service. The calling forth must precede the actual
service. It would render the Constitution a dead letter, to suppose
that he who is enrolled and draughted, but refuses to appear, shall be
exempted from punishment because he has refused.

It is no infringement of the rights of citizens to proceed to the
trial of delinquent militia-men by courts martial. 4

The regular troops of the United States are under the immediate command
of the president from the time of their enlistment; they may be marched
to, or stationed at any part of the United States, at his discretion,
unless prevented by some special legislative act: And although the genius
of a republic and the peculiar character of our country would indicate
that their employment should be only in its defence, yet since a defensive
war is sometimes best carried on by invading the territory of the
aggressor, the president may cause them to be marched out of the United
States to effect this purpose, and there can be no doubt, that in such a
case, he would possess the same power over the militia.

It may perhaps be made a question, whether for the suppression of
insurrection, and in cases of a similar nature, the president can employ
the regular troops in aid of the civil authority. The acts of congress are
silent on the subject, and no power given by them would be valid unless it
could be supported by the principles of the Constitution. It must be
admitted to be a question of great delicacy and importance. No power is so
likely to be abused as the command of a regular army — no measure
would be, more dangerous to civil liberty than an habitual recurrence to
military force in other cases than actual war; yet on the other hand, in
times of dangerous commotion, when law is prostrated and the civil power
is felt to be inadequate, the public good would appear to justify the most
prompt and efficient remedy.

Soldiers do not cease to be citizens by being incorporated into a
regular army, and it is the duty of every citizen in cases of this sort,
to render his best services to his country. It can be no objection to the
fulfilment of this duty, that it is rendered more efficacious by previous
discipline, and by being performed in a regular and not a desultory
manner. It is, however, always to be kept in mind, that the military
should be subordinate to the civil power. The orders for the employment of
this force on such occasions must emanate from the president in his civil
capacity, or from civil officers of the United States, possessing the
authority of conservators of the peace, if any such there be.

That the exercise of this power should be attended with great caution,
no one will deny; real necessity alone will justify its being exercised at
all. There can be no doubt that, if it occasioned the loss of human life,
the whole measure would be liable to severe judicial scrutiny.

1. How well this is explained by Adam
Smith in his Wealth of Nations, vol. 3. p. 56.